This article is written by Ms. Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article discusses briefly the childcare institutionalisation facilities available in India under the JJ Act 2015.
Table of Contents
Introduction
Many children in this country do not have a secure home or family. These children include orphans, abandoned, surrendered, and trafficked children, as well as children whose families are unable to care for them. Children in need of care and protection are put in places like children’s homes, open shelters, observation homes, special homes, places of safety, and specialized adoption agencies. According to a study conducted by the Ministry of Women and Child Development, the country has over 9,500 institutions housing over 3,70,000 children. The Juvenile Justice (Care and Protection) Act 2015 (hereafter referred to as JJ Act 2015) was enacted to cater for the best interest of the child, and in 2016, the Juvenile Justice (Care and Protection of Children) Model Rules (hereinafter referred to as JJMR 2016) were enacted by the Ministry for the said purpose.
In compliance with the Convention on the Rights of the Child, India’s commitment to such children is reaffirmed in the National Policy for Children of 2013. “The State shall endeavour to secure the rights of children temporarily or permanently deprived of parental care by ensuring family and community-based care arrangements, including sponsorship, kinship, foster care, and adoption, with institutionalization as a last resort, with due regard for the child’s best interests and guaranteeing quality standards of care and protection.”
Observation Homes
An Observation Home (hereinafter referred to as OH) is a child-care facility that is “for the temporary reception, care, and rehabilitation of any kid claimed to violate the law, while an inquiry is pending.” as per Section 47 of the JJ Act 2015, the State Government shall create and operate Observation Homes in each district or set of districts, either independently or through voluntary organizations or non-governmental organizations (NGOs). The JJMR, 2016, Rule 29(1)(i) states that separate OHs for boys and girls, as well as age-based segregation, should be implemented, taking into account physical and mental health, as well as the severity of the offence committed.
During the pendency of any investigation, these homes will be constructed in every district or for a group of districts for the temporary reception, care, and rehabilitation of any child believed to violate the law. Rule 9 of the JJMR 2016 states that if a child cannot be brought before the Juvenile Justice Board (JJB) or a single member due to odd hours or distance, the Child Wellbeing and Protection Officer (CWPO) should hold the child in the OH or suitable facility and produce the child before the JJB within 24 hours after arrest. If a child is denied bail, he or she may be placed in an OH.
Special homes
A Special Home is an institution that is responsible for “housing and providing rehabilitative services” to children who have been found guilty of a crime and ordered by the JJB or the Children’s Court to be placed there as defined under Section 2(56) of the JJ Act, 2015. Section 47(1) obliged the State Government to create and maintain Special Homes also in each district or group of districts, either independently or through volunteer organizations or non-governmental organizations (NGOs).
Rule 29 (1)(ii) of the JJMR 2016 states that there should be distinct Special Homes for girls beyond the age of ten, boys between the ages of eleven and fifteen, and boys between the ages of sixteen and eighteen. Children in the Special Home should be divided into groups based on the nature of their offences and their mental and physical condition.
Place of Safety
A “Place of Safety” is a child-care facility for children who have been accused of or found to violate the law as per Section 49 of the JJ Act 2015, at least one haven should be established by the state government. Separate arrangements and facilities should be created for children or people under investigation and children or people who have been convicted. As noted in Section 2(46) of the JJ Act 2015, it must not be a police station or a jail. It can be set up on its own or as part of an Observation Home or Special Home. The person in charge of the safe-haven should be willing to accept the child if the JJB or Children’s Court issues an order. After being found guilty, people can be held in a safe facility while their case is being investigated and while they are being rehabilitated.
The JJB or Children’s Court can order a person to be transported to a safe place in six different circumstances as per Section 18, 19, and 49 of the JJ Act 2015 along with Rule 29 of JJMR 2016:
- For juveniles aged 16 to 18 years who are suspected of committing a heinous crime while the investigation is ongoing;
- Juveniles aged 16 to 18 years are found to have been involved in a heinous crime after the investigation is completed;
- For persons above the age of 18 who are accused of committing an offence while under the age of 18 pending investigation;
- For persons over the age of 18 who are found to be involved in an offence after the investigation is completed;
- For children placed in protective custody by the Board under clause (g) of sub-section (1) of Section 18 of the Act because their conduct and behaviour are such that the JJB believes it is not in the child’s or other children’s best interests to keep them in a Special Home;
- For a person whose claim to be a child is being investigated and is required to be kept in protective custody.
Section 49 of the JJ Act states the setting up of a place of safety. It notes that a person above the age of eighteen years or a child in conflict with the law who is between the ages of sixteen and eighteen years who is suspected of or guilty of committing a heinous offence shall be placed in at least one place of safety in a State listed under Section 41 of the JJ Act. Every place of safety must have separate preparations and facilities for the accommodation of such children or persons throughout the investigation process, as well as children or persons who have been convicted of committing an offence. The State Government may prescribe the types of sites that can be recognized as places of safety under subsection (1), as well as the amenities and services that can be offered there, through laws.
Every year, the District Child Protection Unit (DCPU) is required under Model Rule 85 (iv) to perform an evaluation of the child put in the place of safety and transmit the report to the Children’s Court. There is uncertainty over whether a person or a kid who has crossed the age of 18 at the time of apprehension or during the investigation should be placed in an institution. The JJ Act makes this extremely plain. It stipulates (under Section 49) that the State Government shall establish at least one place of safety in a state, fully registered under Section 41, in which such persons or children shall be lodged if apprehended after the age of 18 years. A CICL between the ages of sixteen and eighteen who is accused of or convicted of committing a serious crime will be placed in a Place of Safety as well.
As observed in the Handbook of Advocates, when the child’s Place of Safety and Special Home is not established in the district where the child’s family lives or in the district where the concerned JJB/Court Children’s has jurisdiction over the child’s case, the child’s right to contact with family is denied. All of this could have an impact on the child’s reformation assessment when he or she reaches the age of 21. In such cases, the attorney can file a video-conferencing application. The lack of rehabilitative services within the Place of Safety can also be brought to the attention of the Children’s Court and the JJB. This implementation gap could also be brought to the attention of the High Court Committee and Juvenile Justice.
Fit facility
The JJ Act allows for the temporary or short-term placement of children in a “Fit Facility.” Section 2 (27) defines a fit facility as one that is managed by the government or by a voluntary or non-profit organization and is prepared to care for a child temporarily for a specific purpose.
Section 51(1) of the JJ Act 2015 empowers the JJB or the Child Welfare Commission (CWC) to recognize a facility run by a governmental organization or a voluntary or non-governmental organization (NGO) registered under any law currently in force as being fit to temporarily take responsibility for a child for a specific purpose. This is done after a thorough investigation into the facility’s and the organization’s suitability to care for the child in the manner that may be prescribed.
It’s critical to distinguish between a fitness centre and a residential residence. While a residential home (Observation Home, Special Home, or Children’s Home) strives to provide long-term care, a Fit Facility is simply supposed to care for the child temporarily. Some instances are as follows:
- A child with a substance abuse problem may be placed in a de-addiction centre by the CWC or JJB if the institution is deemed suitable for the child.
- A specialized hospital may be deemed a suitable institution if a child is suffering from a sickness that necessitates special treatment or quarantine.
- The JJB has the authority to release a child on probation and place him or her in a suitable institution, as well as to order that the child be supervised by a Probation Officer who must provide periodic reports in Form 10 for three years.
- After speaking with the child, the CWC may issue orders for the child to be placed in safe care in a suitable facility until he or she can be put into a home or returned to their parents or guardians.
According to Model Rule 11(8), if the child is placed in a fitness facility, the JJB shall consider the fit facility or special home that is closest to the child’s parent or guardian’s house, unless it is not in the best interest of the child to do so.
Any facility seeking to be recognized as a fit facility must meet the following requirements:
- Meet the basic standards of care and protection for children;
- Provide basic services to any child placed with it;
- Prevent any form of cruelty, exploitation, neglect, or abuse of any kind to any child placed with it; and
- Follow the Board’s or Committee’s orders.
The procedure followed if a child runs away from a child care institution
Section 26 of the JJ Act 2015 describes the situation where if any child has escaped from an Observation Home, Special Home, or other places of safety, or from the care of a person or institution under whom the child was put by a JJB/Court Children’s order, can be taken into custody by the police. The child must then be produced within 24 hours of the JJB that approved the original order or the JJB closest to the location where the child was discovered. The JJB should figure out why the child ran away and then issue instructions for the child to be returned to the same or a comparable location or person. It can also include extra instructions for any specific actions that must be taken in the child’s best interest.
There should be no further procedures brought against such a youngster. For example, if a child runs away from an Observation Home because of sexual assault by a staff member, the JJB may opt to move the child to a different facility. It could also mandate counselling and medical evaluations in the child’s best interests, as well as direct the police to file an FIR.
Gaps within the CCIs
Systematic abuse
“It will not be an understatement to state that juvenile justice homes….have become India’s hell holes where inmates are subjected to sexual assault and exploitation, torture and ill-treatment, apart from being forced to live in inhuman conditions,” according to a 2013 report by the Asian Centre for Human Rights (ACHR), “India’s Hell Holes: Child Sexual Assault In Juvenile Justice Homes.” The study goes on to detail 39 examples of minors in juvenile justice facilities, including government-run observation houses, children’s homes, shelter homes, and orphanages, being sexually assaulted repeatedly.
Systemic abuse can be avoided by establishing a culture inside the institution that makes it undesirable. A written code of behaviour for employees and visitors, awareness training for trustees, staff, and children, and huge visible posters encouraging reporting are all examples of ways to foster such a culture. Children can also be empowered through life skills training and the development of child committees. Regular visits from partner charities and counsellors can also help to foster an open and secure culture.
Gaps in funding and data collection
The Integrated Child Protection Scheme (ICPS) includes adequate funding for childcare facilities. In practice, however, implementation varies from state to state, and funding is inconsistent and unpredictable. Furthermore, while the Child Welfare Committee and the District Child Protection Unit are in charge of overseeing childcare facilities, they lack current data on children and rely on occasional inspections. We propose that, in addition to inspections, supervision be guided by child-level data, which is difficult to falsify and represents reality on the ground.
The number of children in an institution and the outcomes achieved can be used to determine how much money is disbursed under the ICPS. Data can be collected and kept up to date by digitizing the various registers kept by the Juvenile Justice Department (JJ Act). We also need to gather outcome-based data, such as BMI, illness prevalence, children requiring major medical intervention, and so on. For example, doing six-monthly checkups is a fantastic approach to analyze BMI, disease prevalence, children requiring serious medical intervention, and so on. Similarly, children’s educational standing can be assessed once a year with an assessment test.
Lack of training for children
When children reach the age of 18, they must leave the institution, and most youngsters have little assistance after that. Aftercare is a big gap in all institutions, and it isn’t even a focus area in most of them.
While the child is in the institution, preparation should begin around the age of 14 or 15. Career awareness, life skills, and basic financial literacy are all crucial in preparing a child for the day when they must leave and become self-sufficient. By the time the child reaches the age of 18, they should have a clear path to a respectable living and the support they need to get there. Not just financial assistance is essential, but also mentoring and handholding, similar to how a parent would look after a child during these formative years. CCI must form partnerships with nonprofits that can provide follow-up services. The overarching goal must be rehabilitation, and until the problem of the “final mile” is addressed, our corruption will become a reality.
Lack of technical staff
Most childcare facilities have good intentions but lack the necessary expertise and human resources. For example, they require assistance in comprehending the JJ Act’s processes, documentation, and compliance requirements, as well as the ICPS scheme’s compliance requirements. Similarly, the trustees and employees need child care training or nutritionist assistance to improve their diet using locally available food. Institutions also require ‘know how’ in areas such as life skills and vocational training, as well as the preparation of child plans. Most childcare centres are too small and inexperienced to provide these services.
Conclusion
As noted above, there are laws and rules in India concerning Childcare institutions but what is required is a stricter implementation by the legislature then only we can expect a better life for the juveniles, which is the ultimate purpose of the enactment of juvenile justice administration. The objective of the enactment of the Act will be fulfilled only when there is a stricter implementation of the laws relating to it.
References
- http://jjb.bih.nic.in/pdf/JJActHandbookAdministrators.pdf
- https://idronline.org/childcare-institutions-the-need-for-a-new-approach/
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